[1] In order to apply Article 3 (1) of the Punishment of Violences, etc. Act, whether the crime requires that the social order be disturbed or that the crime causes social anxiety (negative)

[2] Whether a victim of a case in violation of the Punishment of Violences, etc. Act has the effect of expressing his/her wish not to punish him/her after the court of first instance rendered a judgment (negative)

[1] Article 1 of the current Punishment of Violences, etc. Act provides that "the purpose of Article 1 of the same Act is to punish a person who commits an act of violence, etc. collectively, habitually, or at night." Thus, Article 2 (2) of the same Act applies to a case where one of the crimes listed in paragraph (1) of the same Article is committed at night, or two or more persons jointly commit an offense, and Article 3 (1) of the same Act applies to a case where a person commits any of the crimes listed in paragraph (1) of Article 2 of the same Act, carrying with him a deadly weapon or other dangerous object by the power of an organization or a group, or by showing the power of an organization or group, or by carrying with him a deadly weapon or other dangerous object, and it is not a requirement

[2] According to the provisions of Article 232(3) and (1) of the Criminal Procedure Act, in a case where a crime cannot be prosecuted against the clearly expressed intention of the victim, an expression of wishing to punish may be made by the time the judgment of the court of first instance is rendered, and the subsequent expression of wish shall not be effective.

[1] Articles 1, 2(1), and 3(1) of the Punishment of Violences, etc. Act / [2] Articles 232(1) and (3) of the Criminal Procedure Act

[1] Supreme Court Decision 85Do1926 delivered on October 22, 1985 (Gong1985, 1595), Supreme Court Decision 93Do1744 delivered on September 24, 1993 (Gong1993Ha, 3006) / [2] Supreme Court Decision 82Do2860 delivered on February 8, 1983 (Gong1983, 547), Supreme Court Decision 83Do893 delivered on May 24, 1983 (Gong1983, 1044), Supreme Court Decision 86Do325 delivered on March 25, 1986 (Gong1986, 742)

Defendant

Defendant

Attorney Han Han-hoon

Busan District Court Decision 2000No1163 delivered on June 9, 2000

The appeal shall be dismissed. One hundred days out of the number of detention days after the appeal shall be included in the original sentence.

We examine the grounds of appeal.

1. As to the grounds of appeal by defense counsel

A. Article 1 of the current Punishment of Violences, etc. Act provides that "the purpose of this Act is to punish a person who commits an act of violence, etc. collectively, habitually, or at night." Thus, Article 2 (2) of the same Act applies to cases where one of the crimes listed in paragraph (1) of the same Article is committed at night, or two or more persons are jointly committed, at night, or where Article 3 (1) of the same Act applies to cases where a person commits any of the crimes listed in paragraph (1) of Article 2 of the same Act, carrying with him a deadly weapon or other dangerous object by the power of an organization or a large number of people or by showing the power under the disguised power of an organization or a group, or carrying with him a deadly weapon or other dangerous object, and it does not meet the requirements for such crime to disturb social order or create social anxiety (see, e.g., Supreme Court Decisions 85Do1926, Oct. 22, 198; 93Do1744, Sept. 24, 19

According to the reasoning of the judgment below, the court below held that among the facts charged in this case against the defendant, the defendant assaulted the victim at night and inflicted a knife on the road, which is a dangerous object, against the crime of violation of the Punishment of Violences, etc. Act. The court below's above legislation and decision are just, and there is no violation of law of misunderstanding of legal principles as to the Punishment of Violences,

The Supreme Court Decision 62M20 Decided May 10, 1962 cited in the ground of appeal is related to the case where Article 1 of the Punishment of Violences, etc. Act (amended by Act No. 625 of Jun. 20, 1961) provides that "the purpose of this Act is to punish a person who disturbs social order and creates social anxiety by committing an act of violence, etc. collectively or habitually." Since the purpose of this Act (amended by Act No. 1108 of Jul. 14, 1962) is to punish a person who commits an act of violence, etc. collectively, habitually or at night, it is inappropriate to invoke the judgment in this case under the former Act before the amendment. The ground of appeal disputing this point is not acceptable.

B. According to the provisions of Article 232(3) and (1) of the Criminal Procedure Act, in a case where a crime cannot be prosecuted against the clearly expressed will of the victim, a declaration of wishing to punish may be made not later than the time the judgment of the court of first instance is rendered, and the subsequent declaration of wish has no effect (see Supreme Court Decision 86Do325, Mar. 25, 1986).

The records reveal that the victim expressed his/her wish not to punish the defendant on May 26, 200, which was after the court of first instance rendered a decision to the court below on May 26, 2000. Thus, the court below's decision not to dismiss the prosecution on each of the charges of this case is just, and there is no error of law in the misapprehension of legal principles as to the crime of no punishment for failing to punish the defendant. The ground of appeal

2. As to the Defendant’s ground of appeal

The gist of the grounds of appeal by the defendant is that the victim is the spouse of the defendant, and the crime of this case constitutes a crime of domestic violence under Article 2 subparagraph 3 of the Act on Special Cases concerning the Punishment, etc. of Crimes of Domestic Violence, the victim expressed his wish not to punish the defendant, and the defendant's age, character and conduct, home environment and motive of the crime of this case, circumstances before and after the crime of this case, etc., it is necessary to impose the same protective disposition under the same Act rather than sentencing to the defendant. Thus, the judgment of the court below which sentenced the defendant to the punishment of this case is reversed and the defendant'

However, as in the instant case, the reason why the sentence of imprisonment with labor and one year and six months is unreasonable is not a legitimate ground for appeal, and the issue of whether it is reasonable to impose a protective disposition on a prosecuted case which constitutes criminal domestic violence at the discretion of the judge is determined by the discretion of the judge. Therefore, the ground for appeal on this point is not acceptable.

3. Therefore, the appeal shall be dismissed, and part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jin-hun (Presiding Justice)